May 3, 2010
ERWIN HALLEY AND LESLEY HALLEY, PLAINTIFFS-APPELLANTS,
MS. MYATT, A/K/A RENE MYATT, A/K/A IOLA-RENE MYATT, DEFENDANT-RESPONDENT, AND SOUTHWEST CAPITAL INVESTMENTS, L.L.C., DEFENDANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2728-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 23, 2010
Before Judges Parrillo, Lihotz and Ashrafi.
On leave granted, plaintiffs, Erwin and Lesley Halley, appeal the Law Division's dismissal of their legal malpractice action against defendant Rene Myatt, on grounds of lack of personal jurisdiction. We reverse.
Plaintiffs are New Jersey residents who owned four residential properties in the cities of Orange, East Orange, and Newark, which they purchased in 1999 with the intention of renovating and leasing them. In 2001, they moved into the residence on Ogden Street in Orange (Ogden Street residence) after completing substantial renovations. In 2003, however, plaintiffs encountered financial difficulties. As a result, they were unable to make mortgage payments to their lenders, American Business Mortgage Services, Inc. (ABMS), a corporation with offices in Roseland, and Southwest Capital Investments, L.L.C. (Southwest), another residential lender with offices in New York, which had acquired title from ABMS to three of plaintiffs' properties as a result of plaintiffs' earlier default in 2001.
When, in early 2003, foreclosure proceedings were commenced against plaintiffs' New Jersey properties, plaintiffs retained defendant, a New York attorney not licensed in New Jersey, to negotiate a remedy with their lenders to allow plaintiffs to retain one or more of their properties. Plaintiffs were referred to defendant through Al Sharpton's National Alliance Network's New York office. After contacting her by telephone, plaintiffs met with defendant in New York for an initial consultation, for which they were charged $250. At this session, plaintiffs brought all relevant documents. Although no retainer agreement was executed, defendant agreed to negotiate on plaintiffs' behalf in what she herself described as a "complex . . . legal matter." Defendant thereafter charged plaintiffs $250 per hour and was ultimately paid $2500 for her services.
Defendant commenced negotiations with ABMS and Southwest. Over the course of a year, defendant communicated regularly with plaintiffs and counsel for Southwest, all of whom were located in New Jersey. Correspondence and faxes were exchanged, all of which were directed to and from New Jersey. Various drafts of a proposed settlement agreement were also discussed and exchanged. There was also an in-person settlement meeting, although its time and location is disputed.
In any event, a final settlement agreement was executed on October 8, 2004. Defendant faxed the final version to plaintiffs, who signed it in New Jersey, and faxed it back to defendant, who in turn faxed the executed version to counsel for ABMS and counsel for Southwest in New Jersey.
Pursuant to the terms of the settlement agreement, deeds in lieu of foreclosure were executed by plaintiffs for the four properties to Tiger Relocation Company, which then recorded the deeds and transferred the properties to Southwest. All eviction proceedings related to the Ogden Street property were then dismissed and Southwest delivered a quitclaim deed to that property directly to plaintiffs, "free and clear of all liens by Southwest."
The settlement agreement also gave plaintiffs the option to purchase one of the two Newark properties (7th Street property) from Southwest for $105,000. Upon payment, Southwest would deliver a quitclaim deed to plaintiffs "free and clear of any liens against Southwest." ABMS was also to refund plaintiffs $7,153.20, and pay them $10,000 "[i]n complete satisfaction of any attorneys fees incurred by them in" the dispute. Soon after execution of the settlement agreement, plaintiffs exercised the option and re-purchased the 7th Street property. Defendant referred plaintiffs to New Jersey counsel to handle the closing, as she advised plaintiffs that she was not licensed to practice in New Jersey and, therefore, could not represent them at the closing.
Unbeknownst to plaintiffs, there was an existing $12,000 tax lien on the Ogden Street property, their primary residence, which allegedly had accumulated during the time Southwest held title to the property. In February 2005, the City of Orange filed a tax foreclosure action against the property. According to plaintiffs, they could not afford to pay the lien off. As a consequence, the lien grew to $47,694 by 2007, at which time plaintiffs filed a Chapter 13 bankruptcy to avoid a tax foreclosure of their home.
Plaintiffs filed the instant action against defendant*fn1 in the Law Division alleging legal malpractice for failing to conduct a reasonable title search, failing to inform plaintiffs of the ramifications of accepting a quitclaim deed as to outstanding liens and title defects, and negligently misrepresenting to plaintiffs their responsibility for any liens attached to the Ogden Street residence. Defendant answered and then moved to dismiss for lack of personal jurisdiction.
An evidentiary hearing was held, which focused on whether defendant was ever physically present in New Jersey during the course of her representation of plaintiffs. During the hearing, defendant's invoice to plaintiffs dated October 27, 2004, itemizing her services throughout the year, was admitted into evidence:
10/06/03: Review of Proposed Settlement Agreement; forwarded copy of Settlement Agreement to clients for their review; 2/24/04: Review of foreclosure papers on . . . Carnegie Avenue [East Orange property] delivered to clients; Further discussion with Attorneys and clients regarding Settlement Agreement; 5/10/04: Discussion with Attorney [for Southwest] regarding draft of Settlement Agreement; 5/26/04: Faxed my changes to Attorney [for Southwest] for his review; 7/02/04: Discussion with Attorney [for Southwest] regarding Clients desire to re-purchase 7th Street Property; Attorney [for Southwest] accepted offer of $105,000.00 for re-purchase on 7th Street; 8/24/04: Reviewed Proposed Power of Attorney for clients; 9/28/04: Discussions with Attorney [for Southwest] regarding adjourning the foreclosure sale; 10/05/04: Review of revised Settlement Agreement including the re-purchase of 7th Street; discussions with client regarding revisions; 10/08/04: Clients signed the Settlement Agreement; and executed Settlement faxed to Attorney [for Southwest] . . .; 10/12/04: Discussions . . . regarding $105,000 to Mr. Halley; discussions with [New Jersey] law firm . . . regarding representing Mr. & Mrs. Halley at closing in N.J.; 10/27/04: Forwarded original executed Settlement Agreement to Attorney [for Southwest] for circulation among the Attorneys.
At the conclusion of the hearing, the judge granted the dismissal motion. Although the judge found that defendant was representing plaintiffs as a lawyer in New Jersey where she is not licensed to practice, the judge concluded both parties lacked credibility and, therefore, plaintiffs had failed to meet their burden of proving personal jurisdiction.
"The question of in personam jurisdiction is a mixed question of law and fact that . . . if it cannot be resolved on pleadings and certifications . . . must be resolved by a preliminary evidential hearing after affording the parties an appropriate opportunity for discovery." Citibank, N.A. v. Estate of Simpson, 290 N.J. Super. 519, 532 (App. Div. 1996). "[T]he jurisdictional issue . . . is a matter of law that we consider de novo[,]" Mastondrea v. Occidental Hotels Mgmt. S.A., 391 N.J. Super. 261, 268 (App. Div. 2007), while "the court's factual findings with respect to jurisdiction" are reviewed "to determine whether they were supported by substantial, credible evidence . . . ." Ibid. (citing Rova Farms Resort. Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974), and Jacobs v. Walt Disney World, Co., 309 N.J. Super. 443, 452 (App. Div. 1998)); see also State v. Harris, 181 N.J. 391, 416 (2004) ("And for mixed questions of law and fact, we give deference, under Rova Farms, to the supported factual findings of the trial court, but review de novo the lower court's application of any legal rules to such factual findings."), cert. denied, 545 U.S. 1145, 125 S.Ct. 2973, 162 L.Ed. 2d 898 (2005).
The plaintiff "has the burden of proving that defendant's contacts are sufficient to sustain the exercise of long arm jurisdiction." Pressler, Current N.J. Court Rules, comment 3.1.1. on R. 4:4-4 (2010) (citing Catalano v. Lease & Rental Mgmt. Corp., 252 N.J. Super. 545 (Law Div. 1991)); Citibank, supra, 290 N.J. Super. at 533; Jacobs, supra, 309 N.J. Super. at 454.
The burden remains on plaintiff to allege or plead sufficient facts with respect to jurisdiction. "Once  defendants have shown that they have no territorial presence in this state, the burden shifts, as it were, to  plaintiff, who must then demonstrate their amenability, nonetheless, to an exercise of in personam jurisdiction based on minimum contacts." [Blakely v. Cont'l Airlines, 164 N.J. 38, 71 (2000)(quoting Citibank, supra, 290 N.J. Super. at 533).]
"The plaintiff must establish defendant's contacts with the jurisdiction through the use of 'sworn affidavits, certifications, or testimony.'" Jacobs, supra, 309 N.J. Super. at 454 (quoting Catalano, supra, 252 N.J. Super. at 547-48).
When facts are in dispute, more than a mere facial inquiry is required, as "[j]urisdictional allegations cannot be accepted on their face if they are disputed." Citibank, supra, 290 N.J. Super. at 532. But, "[i]n deciding whether plaintiff has satisfied [his or her] burden, this court will resolve all disputes concerning material facts presented in the record in plaintiff's favor." Catalano, supra, 252 N.J. Super. at 548.
Substantively, "New Jersey's only limitation upon the exercise of long-arm jurisdiction over a non-resident defendant is that it be 'consistent with due process of law.'" Reliance Nat'l Ins. Co. In Liquidation v. Dana Transp., Inc., 376 N.J. Super. 537, 543 (App. Div. 2005) (quoting R. 4:4-4(b)(1)). "In reviewing the evidence supporting plaintiff's claim, we construe the State's long-arm jurisdictional provision, R. 4:4-4, as extending personal jurisdiction to the outermost limits afforded by due process under the United States Constitution."
Mastondrea, supra, 391 N.J. Super. at 269 (citing Avdel Corp. v. Mecure, 58 N.J. 264, 268 (1971)). "[A]s a consequence, jurisdiction has been exercised wherever possible with a liberal and indulgent view if the facts reasonably support the presence of the flexible concepts of 'fair play and substantial justice.'" Ketcham v. Charles R. Lister Int'l, Inc., 167 N.J. Super. 5, 7 (App. Div.), certif. denied, 81 N.J. 339 (1979).
Although territorial presence of the defendant in the forum is dispositive of the issue, in the absence of actual territorial presence, "in personam jurisdiction may be predicated upon the defendant's contacts with the forum provided they meet the standard of minimum contacts [established in International Shoe Co. v. State of Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945)]." Citibank, supra, 290 N.J. Super. at 526. In fact, the United States Supreme Court has specifically rebuked the physical presence requirement, noting that it is an inescapable fact of modern commercial life that a substantial amount of business is transacted solely by mail and wire communications across state lines, thus obviating the need for physical presence within a State in which business is conducted. So long as a commercial actor's efforts are "purposefully directed" toward residents of another State, we have consistently rejected the notion that an absence of physical contacts can defeat personal jurisdiction there.
[Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed. 2d 528, 543 (1985).]
Accordingly, "[d]etermining whether a non-resident defendant is subject to our jurisdiction requires a two-pronged analysis . . . ." Reliance, supra, 376 N.J. Super. at 544. "'The first step is to determine whether [the] defendant [has] had the requisite minimum contacts with New Jersey,'" Shah v. Shah, 184 N.J. 125, 138 (2005) (quoting Blakey, supra, 164 N.J. at 66), "and then a consideration [of] whether the exercise of jurisdiction comports with 'fair play and substantial justice,' i.e., is it reasonable in the overall context of the matter." Reliance, supra, 376 N.J. Super. at 544 (citing Lebel v. Everglades Marina, Inc., 115 N.J. 317, 328 (1989)).
As to the first prong, we evaluate the minimum contacts on a case-by-case basis. Shah, supra, 184 N.J. at 138.
That first step "ensures that a state's grasp does not exceed its jurisdictional reach," and, in doing so, protects the primary interest of the restriction: preserving "the defendant's liberty interest in not being subject to the entry of a judgment in a jurisdiction with which the defendant does not have sufficient minimum contacts." [Waste Mgmt. v. Admiral Ins. Co., 138 N.J. 106, 122 (1994), cert. denied sub nom., WMX Techs. v. Canadian Gen. Ins. Co., 513 U.S. 1183, 115 S.Ct. 1175, 130 L.Ed. 2d 1128 (1995).]
"The analysis and determination [of] whether a defendant's contacts with New Jersey are sufficient to support in personam jurisdiction depends upon 'whether general or specific jurisdiction is asserted . . . .'" Reliance, supra, 376 N.J. Super. at 544 (quoting Citibank, supra, 290 N.J. Super. at 526-27). Where, as here, specific jurisdiction over the defendant is asserted, a court is required to assess "whether the claim is related to or arises out of the [defendant's] contacts in the forum . . . ." Citibank, supra, 290 N.J. Super. at 527; Accura Zeisel Machinery Corp. v. Timco, Inc., 305 N.J. Super. 559, 565 (App. Div. 1997).*fn2 On this score, the Court has stated:
In the context of specific jurisdiction, the minimum contacts inquiry must focus on "the relationship among the defendant, the forum, and the litigation." The "minimum contacts" requirement is satisfied so long as the contacts resulted from the defendant's purposeful conduct and not the unilateral activities of the plaintiff.
"This 'purposeful availment' requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of 'random,' 'fortuitous,' or 'attenuated' contacts." The question is whether "the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there." [Lebel, supra, 115 N.J. at 323-24 (citations omitted) (cited in Shah, supra, 184 N.J. at 138-39).]
Along these same lines, "[j]urisdiction in the forum state may also be based on the effects in the forum state of a nonresident's actions." Halak v. Scovill, 296 N.J. Super. 363, 370 (App. Div.), certif. denied, 150 N.J. 28 (1997). "A person who commits a tort arising out of a business dispute with a New Jersey resident and has some contacts with New Jersey in connection with that business transaction should reasonably anticipate being sued in New Jersey." Ibid. Personal "[j]urisdiction may be asserted regardless of whether the tortious act is negligent or intentional." Jacobs, supra, 309 N.J. Super. at 461.
In Wolpert v. North Shore Univ. Hosp., Defendants, a New York physician, psychologists and social worker, as well as North Shore University Hospital, of Manhasset, New York, issued two reports to the Superior Court of New Jersey concerning the alleged sexual abuse by plaintiffs of plaintiffs' grandson. The abuse charges had been raised by plaintiffs' former daughter-in-law, who resides in New York, in an effort to prevent visitation with her son's father and grandparents in New Jersey.
[231 N.J. Super. 378, 379-80 (App. Div. 1989).]
The complaint against the non-resident defendants alleged negligence, gross negligence, and intentional conduct. Id. at 380. We held that "[i]f the actions of defendants were negligent, reckless or intentional, they were directed at and intended to have effect in a New Jersey proceeding, as is apparent from the reports being addressed to a Superior Court judge in New Brunswick." Ibid. We found that there was "little difference between this case and any other in which a person takes an action in one state, but knows it will have effect in another. In such a case, the second state constitutionally can acquire jurisdiction over the actor." Ibid. Accordingly, we determined that "a physician or other health care professional who issues a report, intending that it will be the basis for action in another state, should realize that liability can follow in the courts of that state." Id. at 381. We thus found that the defendants' report "may subject the issuer to liability in New Jersey, irrespective of the fact that it was rendered and mailed from over the State line." Id. at 383. But see generally Bovino v. Brumbaugh, 221 N.J. Super. 432 (App. Div. 1987) (jurisdiction should not be exercised over a non-resident physician who renders services in another state to a patient who has voluntarily traveled from the forum state to benefit from the physician's services).
Similarly, in Washington v. Magazzu, we found that a Virginia attorney, since deceased, had sufficient minimum contacts with New Jersey in the plaintiffs' legal malpractice action against his estate. 216 N.J. Super. 23, 27 (App. Div. 1987). We explained that plaintiffs engaged New Jersey counsel to find an attorney in Virginia for them. Id. at 24-25. Plaintiffs' New Jersey counsel was referred by a Virginia law firm to the defendant, who began a year long correspondence with the plaintiffs' New Jersey counsel, during which the defendant wrote three letters which requested additional case facts and discussed payment. Id. at 25-26. In the final letter, the defendant advised the plaintiffs' New Jersey counsel that he had told the plaintiffs "that they had no case." Id. at 26. We found that:
[Defendant's] letters directed to [plaintiffs' local counsel], the disclosed agent of New Jersey residents, constituted activities by [defendant] "purposefully directed . . . at residents" of New Jersey and "the litigation results from alleged injuries that arise out of or relate to those activities." . . . [Plaintiffs' local counsel] responded [to defendant's letters] with the [requested] information and therefore had reason to believe that a relationship involving continuing obligations between plaintiffs and [defendant] had thereby been established.
We conclude that [defendant] purposefully established minimum contacts within New Jersey and thus plaintiffs have successfully negotiated the first step in the analysis. [Id. at 27.]*fn3
Here, in finding no personal jurisdiction, the motion judge relied almost exclusively on the absence of credible evidence of defendant's physical presence in New Jersey. Yet, as noted, the focus on territorial presence to the exclusion of any analysis whatsoever of the quantity and quality of defendant's other contacts with the State was misguided. See Lebel, supra, 115 N.J. at 327. On this score, the undisputed proofs demonstrate substantial interaction with New Jersey, more than sufficient, in our view, to satisfy the minimum contacts test.
First and foremost, defendant entered into a professional relationship with plaintiffs, whom she knew to be New Jersey residents, for the purpose of representing them in negotiations to settle pending or impending quasi in-rem foreclosure actions in a New Jersey court involving four properties situated in New Jersey. To this end, defendant communicated regularly over the course of one year with plaintiffs and Southwest's New Jersey counsel by telephone, fax, and written correspondence. In her own certification, defendant notes that her assistance in the matter occurred "by way of written or telephonic communication with either ABMS in Pennsylvania, and counsel for Southwest Capital in New Jersey." (Emphasis added). As a result of these efforts, defendant negotiated a final resolution of the matter. By her own admission, "[t]he invoice indicated what I did to assist [the plaintiffs]. . . . And with respect to the settlement agreement, what I did is I attempted to negotiate the terms of it with Southwest and [ABMS]. So, this invoice does reflect . . . the work that I do."
Defendant executed the final version of the settlement agreement, faxing a copy to plaintiffs for their signatures, after which defendant faxed the signed version to counsel for ABMS and Southwest. Thereafter, defendant was involved in negotiating with Southwest's New Jersey counsel for plaintiffs to re-purchase one of their New Jersey properties from Southwest, and coordinated with plaintiffs' local counsel regarding the property's closing. As noted, defendant's representation of plaintiffs lasted for one year and she was paid in full for her services.
To be sure, the fact that a contact is in written, electronic, or telephonic form is not determinative of personal jurisdiction, as "the mere transmittal of messages by mail or telephone within the state is not the critical factor, it is the nature of the contact" that is the focus of our analysis.
Lebel, supra, 115 N.J. at 325. Here, we are convinced the nature, quality, and quantity of defendant's contacts with New Jersey establish personal jurisdiction. Most significantly, defendant's activities were purposely directed at New Jersey residents and directly impacted New Jersey real property, which was the subject of litigation in New Jersey courts. Simply put, defendant's contacts with New Jersey had significant effects in this State, Avdel, supra, 58 N.J. at 272, irrespective that her services were "rendered . . . from over the State line." Wolpert, supra, 231 N.J. Super. at 383.
Having established sufficient minimum contacts, we next consider whether the exercise of personal jurisdiction comports with "fair play and substantial justice." Lebel, supra, 115 N.J. at 328.
Once an examination of the defendant's minimum contacts with the State is complete, the policy question whether "the assertion of jurisdiction affect[s] traditional notions of fair play and substantial justice[,]" must be addressed. That requires the consideration of a number of factors that comprise "the flip-side of the purposeful availment doctrine, [that is] whether the offending party could reasonably anticipate that the forum state would have a substantial interest in vindicating the personal rights of the injured party." [Shah, supra, 184 N.J. at 139 (quoting Blakey, supra, 164 N.J. at 69).]
"The burden here, however, shifts, for it is the 'nonresident defendant who has been found to have minimum contacts with the forum [who] must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable.'" McKesson Corp. v. Hackensack Med. Imaging, 197 N.J. 262, 278 (2009) (quoting Lebel, supra, 115 N.J. at 328). The Court has made clear that "[t]his determination requires evaluation of such factors as the burden on the defendant, the interests of the forum State, the plaintiff's interest in obtaining relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies; and the shared interest of the several States in furthering fundamental substantive social policies." [Id. at 279 (quoting Lebel, supra, 115 N.J. at 328)].
Measured against this standard, we are satisfied that the exercise of personal jurisdiction in this case is fair. In our view, trying defendant, a New York resident, in a New Jersey court, presents no special burden to defendant since the two States are contiguous. See, e.g., Avdel, supra, 58 N.J. at 273 (holding that "there is certainly no special inconvenience to defendant since the two states are contiguous."); Ketcham, supra, 167 N.J. Super. at 10 (finding that "[s]ince the City of New York is contiguous and close to New Jersey, there appears to be no great inconvenience for defendant to defend the action in this forum."); Young v. Gilbert, 121 N.J. Super. 78, 87 (Law Div. 1972) (finding "no special inconvenience to this defendant, since New Jersey and New York are contiguous"); Litton Indus. Sys., Inc. v. Kennedy Van Saun Corp., 117 N.J. Super. 52, 71 (Law Div. 1971).
Balanced against any potential inconvenience to defendant is New Jersey's very real interest in regulating the practice of law in the State and in shielding its citizens from the unauthorized practice of law within its borders. In many situations, a State has a "manifest interest in providing effective means of redress for its residents . . . [,]" McGee v. Int'l Life Ins. Co., 355 U.S. 220, 223, 78 S.Ct. 199, 201, 2 L.Ed. 2d 223, 226 (1957), particularly where a heavily regulated industry or profession is involved. See, e.g., Lebel, supra, 115 N.J. at 329; Avdel, supra, 58 N.J. at 270. In particular, the State has "fundamental interests in [the] regulation of the legal profession" which are "implicated whether an attorney counsels a client through a transaction culminating in the client's execution of legally binding documents, or counsels and represents a client during a litigated matter." In re Jackman, 165 N.J. 580, 584-85 (2000) (emphasis added). Similarly, the unauthorized practice of law is an act "for the courts to vigilantly scrutinize . . . so that the practice of law in this state does not degenerate into a jungle." Estate of Vafiades v. Sheppard Bus Serv., Inc., 192 N.J. Super. 301, 316 (Law Div. 1983).
In this regard, we fully appreciate that defendant neither solicited nor advertised for clients in New Jersey, and we recognize her further argument that she was not engaged in the practice of law in the traditional sense while acting on plaintiffs' behalf. Nevertheless, we are constrained to note that under our present Rules of Professional Conduct (RPC), extant at the time of defendant's engagement, non-New Jersey lawyers may participate in mediation in New Jersey only for existing clients and only if "the dispute originates in or is otherwise related to a jurisdiction in which the lawyer is admitted to practice." RPC 5.5(b)(3)(ii).*fn4 Moreover, defendant's representation of plaintiffs, "through a transaction culminating in the client's execution of legally binding documents[,]" i.e., the settlement agreement of October 8, 2004, is sufficient, in our view, to implicate the State's interest in the professional relationship, cf. In re Jackman, supra, 165 N.J. at 584-85, and justify its exercise of jurisdiction over defendant.
In sum, we are satisfied that, employing Lebel's two-prong analysis, New Jersey has personal jurisdiction over defendant.
Reversed and remanded for further proceedings consistent with this opinion.